Juveniles could get less penalty for distribution of sexual images

• Mike Vehle

Mike Vehle

Talk about it

PIERRE — State legislators are looking at making “sexting” — sending pornographic images of themselves or each other — specifically illegal for juveniles in South Dakota.

The activity already can be prosecuted as child pornography under state law.

But Sen. Mike Vehle, R-Mitchell, wants to give state’s attorneys the option of charging juveniles with a Class 1 misdemeanor, rather than as a felony.

A Class 1 misdemeanor is punishable by up to one year in jail and a $2,000 fine.

A child pornography conviction is a Class 4 felony for the first offense and is punishable by incarceration in the state penitentiary for up to 10 years and a $20,000 fine. A second or subsequent conviction is a Class 3 felony punishable by up to 15 years in prison and a $30,000 fine.

Jesse Weins, an assistant professor of criminal justice at Dakota Wesleyan University, testified Thursday at the state Capitol in favor of adding the lesser offense to South Dakota law.

Weins acknowledged that adults can legally engage in transmitting sexual images of themselves and each other.

He also acknowledged that the legal age of sexual consent in South Dakota is 16.

“It is a conflict somewhat, intellectually,” Weins told members of the Senate judiciary committee. But, he added, “There are different harms that come with juveniles recording sex.”

The committee voted 7-0 to endorse passage of the legislation, Senate Bill 183. The measure now heads to the full Senate for consideration, possibly as early as Friday.

The legislation uses the same definitions of nudity and prohibited acts as the child-pornography laws.

Vehle said the idea came from a presentation Weins made to a local service club. Weins has also written on the topic for a law journal.

Vehle brought a broader version of the legislation last year but it was rejected by the same committee on a 7-0 vote. He said a panel of county prosecutors subsequently worked to develop the new version, which deals only with sexting between juveniles.

Activity involving someone 18 or older and someone younger than 18 is covered by the child pornography laws.

Vehle said he hopes that juveniles, if they understand their actions are illegal, would think before making or distributing images. He said the problem mushrooms when child pornography purveyors find the images.

“We just need something that’s between nothing and child pornography,” Vehle said.

The prosecutors association and Concerned Women For America group supported the legislation Thursday. The defense attorneys organization opposed passage, because the legislation doesn’t address malicious intent and because of the unresolved question involving sexual consent at 16.

The committee’s chairman said he’s comfortable with the bill as written and praised Vehle.

“I think he’s hit the nail on the head,” said Sen. Craig Tieszen, R-Rapid City.

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